NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 495 OF 1997 (From the order dated 17.9.1997 in complaint No.75/1995 of the State Commission Uttar Pradesh) M/s. Indian Airlines, Delhi & Ors. Appellants Vs. S.N. Seth & Ors. . Respondents BEFORE: HONBLE MR. JUSTICE D.P. WADHWA, PRESIDENT HONBLE MR. JUSTICE J.K. MEHRA, MEMBER. MRS. RAJYALAKSHMI RAO, MEMBER. MR. B.K. TAIMNI, MEMBER Travel Agent - travel by air - confirmed tickets issued by authorised travel agent of Indian Airlines - no flight on the date indicated in the air ticket - liability of Indian airlines as principal- held liable. For the appellants : Ms. Shipra Mathur, Advocate for M/s. Bhasin & Co., Advocates For the respondents : N E M O O R D E R
DATED THE 15th
April, 2002.
JUSTICE D.P. WADHWA, J.(PRESIDENT).
This appeal
by the Indian Airlines is directed
against the order of the Uttar Pradesh State Consumer Disputes Redressal
Commission holding it liable for the negligence
of its agent in issuing confirmed air ticket from Lucknow to Delhi when there
was no flight on that particular date.
On a complaint filed by the first respondent- complainant S.N. Seth State Commission awarded him
compensation of Rs.10,000/-, Rs.1,210/-
being price of the air ticket with interest @ 18% per annum being the refund of the price of the ticket
and Rs.500/- as costs. State Commission
passed this order not only against the
Appellants-Indian Airlines but also
against its authorised
travel agent viz. M/s. Continental Travel Service
(Delhi) Pvt. Ltd. who is respondent No.3 in this appeal. It is this third respondent who had issued
the air tickets through the second
respondent also working as travel
agent.
Seth is a
pensioner and is a retired officer of Indian Administrative Service. On 19.5.1995 he purchased tickets of the
Indian Airlines for the journey from
Delhi to Lucknow for 23.5.95 and from Lucknow
to Delhi for 25.9.94. It is not disputed that the third respondent Continental Travel Service (Delhi) Pvt. Ltd.
was the authorised travel agent of the Indian Airlines. Seth paid Rs.3024/- being the price of the
two tickets, the flight from Lucknow to Delhi being return flight. When he reached Lucknow airport
on that day he was told
that there was no flight on that day
which undoubtedly caused him great deal
of harassment, inconvenience and expense.
Seth has
submitted in his written arguments that
when he reached the airport staff of
the Indian Airlines instead of being
sympathetic to him since he was holding a confirmed air
ticket they rather laughed at him and offered no help. Seth wrote to the Indian Airlines who
accepted the lapse on the part of their travel agent and in turn said that
travel agent has been asked to apologize to
him. Indian Airlines also offered
Seth and his wife two complimentary
air tickets from Lucknow to Delhi and back. Offer of apology and
two complimentary air tickets was
not accepted by Seth.
He made a claim for Rs.5.00 lakhs
towards damages.
Now in the
written version stand of the Indian Airlines was that Continental Travel Service (Delhi) Pvt. Ltd. was
ticketing agent to a
limited extent to sell Indian
Airlines tickets in accordance with the flight operation schedules and timings notified by the
Indian airlines. In issuing wrong confirmed ticket regarding the
date/day of flight in question
due to inadvertence, negligence
or otherwise Continental Travel Service (Delhi) Pvt. Ltd. acted contrary
to the instructions of the Indian
Airlines and in such
circumstances Indian airlines shall not
be responsible for any consequential loss to the complainant as action of the
said travel agent was beyond the scope of his authority. This defense of the Indian Airlines did not find acceptance
by the State Commission. Stand of the Indian Airlines was that summer schedule of its flight was introduced w.e.f. 7.5.1995 and
there was no flight from Lucknow to Delhi
on every Thursday and that this information was placed on
reservation system of the Indian
Airlines and all the travel agents
and interline partners were
informed about it well in advance and
that under these circumstances it was not possible to place any requisition for
reservation or reservation system of the Airlines for the flight in question
when on that particular date flight was not to operate. Further stand of the Indian airlines was that Continental Travel Service (Delhi)
Pvt. Ltd. had acted in dual
capacity, first as an agent of the complainant and secondly
as a ticketing agent to sell the
tickets to the limited extent of the Indian Airlines.
State
Commission after examining the whole aspect of the matter found both the Indian
Airlines and the Continental Travel
Service (Delhi) Pvt. Ltd. deficient in
service and awarded compensation as aforesaid. It was submitted by the
learned counsel for the Indian airlines that it was the travel agent who was at
fault and no liability could be imposed on the Indian Airlines. In support of her submission she referred to
two decisions earlier rendered by this
Commission in the case of Indian Airlines Corporation Vs. Patel Ramubhai
Shanker Lal & Anr. – II (1993) CPJ 205 (NC) and Chief Commercial
Officer, Indian Airlines & Anr. Vs. P. Lalchand & Anr. – II (1996) CPJ
61 (NC). It was, therefore, submitted
that the
order of the State Commission was against the law laid down by the
National Commission and the impugned order therefore could not stand.
We have
examined these two judgments and in our view these judgments would confine to
the facts of those cases. We have not
been shown as to what were the terms of
agency of Continental Travel Service
(Delhi) Pvt. Ltd. Agency agreement has not been placed on
record. To say that Continental Travel
Service (Delhi) Pvt. Ltd. was travel
agent only to a limited extent is not
enough. The terms of the agency
agreement were well within the
knowledge of the Indian Airlines which
have not been brought on record. In
the correspondence that ensued between Seth
and Indian Airlines before
filing the complaint, it was not the case of the Indian Airlines that it
was not responsible under the agency
agreement with Continental Travel
Service (Delhi) Pvt. Ltd.
It has to be held that travel agent is the agent of the Indian Airlines
and it acts on behalf of its principal,
the Indian airlines. If for any negligent act of agent loss is caused
to the third party principal is
certainly liable. Issuing air ticket on behalf of the Indian Airlines
a contract has been entered into between Seth and Indian airlines. In such circumstances principal would
certainly be bound by the terms of the
contract. Section 230 of the
Indian Contact Act
provides that In the absence of any contract to that effect an agent
cannot personally enforce contracts entered into by him on behalf of his
principal, nor is he personally bound by them. In number of cases this Commission has taken decision based on
the Law of Contract and contractual
terms that no liability can lay
on the agent who can neither sue or be sued
and it
is the principal who is answerable.
Supreme
Court in the case of Marine Container
Services South Pvt . Ltd.
Vs. GO GO Garments –
(1998) 3 SCC
247 has clearly
stated in
unmistakable language that Contract Act applies to the complaints filed under the Consumer protection Act, 1986. This is how the supreme Court observed:
We are not a
little surprised to read that the Contract Act does not apply to complaints
filed under the Consumer Protection Act.
The Contract Act applies to all the litigants before the Commission
under the Consumer Protection Act included.
Whether in proceedings before the Commission or otherwise, an agent is
entitled to invoke the provisions of Section 230 of the Contract Act and, if
the facts found support him, his
defence based thereon cannot be brushed away.
It could be
said that we are deviating in this case from the principle of law laid by this Commission earlier in two cases
aforesaid. National Commission or
Consumer Forum under the Consumer
Protection Act, has no power of review
as held by Supreme Court in the case
In Jyotsana Arvind Kumar Shah &
Ors. Vs. Bombay Hospital Trust – 1999
(4) SCC 325. That would apply to that
case itself and if we find that decision earlier rendered was contrary to the law
as laid by the Supreme Court it can certainly take a different view.
We have not been shown any statutory
provision under which Indian Airlines can be absolved of its responsibility for
the acts of its agent when acting within the scope of its authority. In the present case, Continental Travel
Service (Delhi) Pvt. Ltd., an
agent, has issued confirmed
ticket from Lucknow to Delhi on a day when there was no flight. It is a clear case of deficiency in service
for which Indian Airlines, the
principal is liable. The order of
the State Commission is correct; we affirm the same and would dismiss the
appeal with cost.
Though
complainant-respondent No.1 did not
appear in person but he wrote that
being a retired officer with meager pension he could not come to Delhi as one visit costs
Rs.5,000/-. He, therefore, sent
written notes of submissions. He is,
therefore, entitled to cost which we
assess at Rs.2,000/-.
J
(D.P.
WADHWA)
PRESIDENT
..J
(J.K. MEHRA)
MEMBER
.
(RAJYALAKSHMI
RAO)
MEMBER
.
(B.K.
TAIMNI)
MEMBER